R v Tweeddale CA38/06

[2006] NZCA 453

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND  CA38/06

THE QUEEN

v

WAYNE PAUL TWEEDDALE

Hearing:         21 June 2006

Court:            William Young P, Wild and Heath JJ Counsel:  M D Downs for Crown

C P Brosnahan for Mr Tweeddale

Judgment:      7 September 2006         at 11am

JUDGMENT OF THE COURT

A        Leave to appeal is granted. B          The appeal is allowed.

CThe declaration that evidence gathered from the search was inadmissible is set aside.  We order that the evidence gathered is admissible at trial.

DNot  to be published  in  news  media  or on  internet  or other publicly accessible database until final disposition of trial.  Publication in law

report or law digest permitted.

R V TWEEDDALE CA CA38/06  7 September 2006

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]      Mr Tweeddale was committed for trial in the District Court at Wanganui on three charges.  All arise out of an incident that occurred on 11 November 2004 in the Celtic Arms Hotel.

[2]      Mr Tweeddale  is  charged  with  assault  with  intent  to  avoid  detection, unlawful possession of cannabis plant, unauthorised possession of a pistol (a pen gun) and unauthorised possession of a restricted weapon (a can of capsicum spray).

[3]      The Solicitor-General seeks leave to appeal against a pre-trial ruling given by Judge Lance QC in the District Court in which he declared inadmissible physical evidence gathered following a search of Mr Tweeddale’s bag under s 18(3) of the Misuse of Drugs Act 1975 (the Act).  Section 18(3) requires a police officer to have “reasonable  ground  for  believing”  that  a person  is  in  possession  of a  specified controlled drug before he or she may conduct an unwarranted search of the suspect.

[4]      The primary issue in the District Court was the time at which the Court ought to  assess whether  a police officer  had “reasonable ground  for  believing” that  a person was in possession of a specified controlled drug, for the purpose of s 18(3). A subsidiary question was whether the search was, in any event, rendered lawful by Mr Tweeddale  abandoning  the  relevant  bag  prior  to  the  physical  search  being undertaken.

The facts

[5]      At  about  5.20pm on 11  November  2004,  Sergeant  Patterson  received  an anonymous telephone call advising that a known gang member was in possession of drugs at the Celtic Arms Hotel.  The informer described what the Hells Angels gang

member was wearing and said that he was showing a number of male Maori the contents of a small bag he had in his possession.

[6]      The informer told Sergeant Patterson that he believed the male Maori to be Mongrel Mob members.  He said that he had overheard a conversation between the Hells Angels gang member and the male Maori about a drug deal.

[7]      Sergeant Patterson confirmed that the informer did not tell her that he had seen any exchange of material.

[8]      Sergeant Patterson went immediately, with three constables, to the hotel bar. She noticed that there was a group of male Maori sitting in the outdoor bar area. When she walked into the bar she could see staff working behind the bar and two older ladies seated at a table near the bar.

[9]      Under cross-examination, Sergeant Patterson accepted that a state of high tension existed between the Hells Angels and the Mongrel Mob at this time.   She confirmed that Mr Tweeddale was known to be a member of the Hells Angels and that he had been attacked by Mongrel Mob members outside the District  Court within the week prior to the alleged offending.  The Sergeant accepted that, although it was not unknown for drug deals to take place between the gangs, it was unlikely that such a deal would take place in the atmosphere then prevailing.

[10]     One police officer described the male Maori outside the bar as “enjoying the sunshine” while Sergeant Patterson accepted that none fitted the genre of Mongrel Mob members.

[11]     Sergeant Patterson observed a large Caucasian male, wearing a black T-shirt with a Hells Angels emblem, seated at a rear booth in the bar.  The Sergeant knew that person to be Mr Tweeddale.  He was seated with a female.

[12]     Sergeant Patterson approached Mr Tweeddale, noticing what she thought was a “small black bum bag” on the bench seat  next to  him.   Soon afterwards, she ascertained that it was coloured red.  A black cap was inside the bag.

[13]     Sergeant  Patterson  introduced  herself  to  Mr Tweeddale  and  his  female companion.  She advised them that she intended to search both of them under s 18(3) of the Act.  She made no express mention of an intention to detain for the purpose of search, though that is likely to have been implicit in what she conveyed.

[14]     On the uncontested evidence before the District Court Judge, Mr Tweeddale responded aggressively to the Sergeant’s announced intention to search him.  He got out of his seat and said “fuck this, I’m not staying”.  Sergeant Patterson said that he “dropped his shoulder” into her chest area to push her out of the way.   The force used  was  such  that  she  spun  around  behind  him,  almost  losing  her  balance. Mr Tweeddale began to run towards the door.

[15]     Sergeant Patterson managed to take hold of the back of Mr Tweeddale’s shirt. She noticed he had taken the bag and the cap with him.  One of the other constables present intercepted Mr Tweeddale’s progress and took him to ground.  A third police officer  then  collected  the  bag  and  cap  which  were  on  the  ground  next  to Mr Tweeddale.  When asked, Mr Tweeddale denied ownership of those items.

[16]     Sergeant Patterson confirmed that those items had been on the seat next to

Mr Tweeddale when she first approached him.

[17]     Mr Tweeddale was arrested.   He was removed from the bar area with his belongings.  Subsequently, the bag and cap were searched.   The bag was found to contain a number of items, including a loaded pen gun, capsicum spray and a plastic bag containing cannabis plant material.  An unproductive search was carried out on the female companion at the scene.

Competing submissions

[18]     Mr Brosnahan, for the accused, submitted that the search commenced at the time Sergeant Patterson invoked s 18(3), by conveying her intention to search to the accused.   For the Crown, Mr Downs submitted that the search did not commence until such time as the bag was actually searched.

[19]     As our summary of facts makes clear, there had been activity between those two times which may have been relevant to the police officer’s ability to search.

[20]     Mr Downs also sought to maintain an argument put before the District Court Judge  that  Mr Tweeddale’s  attempts  to  abandon  the  bag,   coupled  with  his subsequent denial of ownership, removed any continuing expectation of privacy that would otherwise operate to engage s 21 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).  Mr Brosnahan submitted that abandonment did not arise on the facts.

[21]     In the event that  we were to  hold against the Solicitor-General on those points, Mr Downs argued for admission of the evidence on the basis of the principles articulated in R v Shaheed [2002] 2 NZLR 377 (CA). Mr Brosnahan submitted that any breach of the Bill of Rights was too fundamental to justify invocation of the Shaheed principles.

The District Court judgment

[22]     Judge Lance summarised briefly the arguments put to him.  He recorded that Mr Brosnahan had contended that the search commenced at the time Sergeant Patterson announced her intention to conduct the search.  Counsel who appeared for the Crown had submitted that the search did not start until the physical actions relating to it commenced.

[23]     The Judge took the view that “the lawfulness of the search must be looked at, at the time it physically commences”.  He then referred to the right to search being dependent upon the searching officer’s “reasonable grounds for believing” that a controlled drug or precursor substance was in the possession of the accused.

[24]     While  Judge Lance  held  that  “reasonable  ground  for  believing”  must  be determined at the time the search physically commenced, all of the factors to which he referred in determining that point occurred before Sergeant Patterson announced her  intention  to  search  Mr Tweeddale.    For  that  reason,  we  treat  the  Judge’s

reference to “commencement of the physical search” as referring to the point at which the intention to search was announced.

[25]     Judge Lance concluded:

[24]   I find the search of the accused commenced with the actions relating to his detention.  I find, considering the evidence objectively and subjectively that  it  falls  well  short  and  is  quite  insufficient  to  satisfy  the  statutory threshold and the Sergeant did not have any reasonable ground to believe the accused was in possession of a controlled drug.   To hold otherwise would open the door  for  the Police to search any person  on some anonymous allegation.    Before the Police can  invoke  s 18(3)  they  must  have  some credible information.  Here, for a start, the caller was anonymous.  Then on attending  the scene,  apart  from  the  presence  of  the  accused,  there  was nothing to corroborate the callers information.  Indeed the contrary. …

[26]     Judge Lance was unimpressed with the abandonment argument.  His Honour took the view that it was artificial to classify what happened as abandonment.  The Judge considered it a reasonable inference that Mr Tweeddale lost his grip on the bag as a result of Police actions in securing him.

[27]     Judge Lance said that he had considered the principles set out in R v Shaheed. The Judge took the view that the breach was “fundamental and significant” while the drugs found were “very much at the lower end of the scale”.  Without giving further reasons, the Judge found that admission of the evidence was not saved by application of Shaheed.

Our view of the case

[28]     Although the application for leave to appeal was brought by the Solicitor- General, the scope of the argument was narrow and the extent of authority cited was slight.  We did not, for example, hear any argument about whether it is necessary to align the time of commencement of a s 18(3) search with the time at which a suspect may render himself or herself liable to prosecution under s 16 of the Act.

[29]     Section 16 provides that an offence is committed against the Act  by any person who “wilfully obstructs, hinders, resists, or deceives any other person in the

execution of any powers conferred on that other person by or pursuant to” the Act. An example of the application of s 16 is Urlich v Police (1989) 4 CRNZ 144 (HC).

[30]   Given the limited scope of the argument and the apparent absence of authoritative appellate decisions on this issue, we prefer not to decide the time at which “reasonable ground for believing” ought to be assessed for the purposes of s 18(3).    Instead,  we assume  (without  deciding  the  point)  that,  at  the  time  the intention to  search was announced, the police officer did not have a reasonable ground for believing that Mr Tweeddale had controlled drugs on his person or in his bag.  Further, we assume (without deciding the point) that the search was therefore “unreasonable” for the purposes of s 21 of the Bill of Rights.

[31]     We make those assumptions because we are satisfied, contrary to the view expressed by Judge Lance, that the search is saved, on any view, by the application of Shaheed principles.

[32]     We regard the following factors as determinative on a Shaheed analysis: (a)          At all material times the police officers acted in good faith.

(b)      The tip provided to the police officers by the anonymous informer, coupled with what the officers observed at the scene, was (at the very least) at the margins of the difference between “reasonable ground for believing”  and  reasonable  grounds  to  suspect.    The  problematic feature of the case is whether further inquiry ought to have been made by the Sergeant, of bar staff, before announcing an intention to search given the state of high tension then existing between Hells Angels and the Mongrel Mob: see [9] above.

(c)      After the intention to search was announced, Mr Tweeddale sought to escape detection by fleeing from the scene, using a degree of force to do so.  At that point it is highly arguable that an offence against s 16 of the Act was committed.   Such an offence can be punishable by imprisonment.  Alternatively, it appears that Mr Tweeddale assaulted

Sergeant Patterson.  Certainly what occurred was likely to lead to the ability of a police officer to arrest Mr Tweeddale under s 315 of the Crimes  Act  1961.    An  arrest  under  s 315  would  have  carried  a consequential right to search the arrested person: eg R v Lewis CA399/98 13 May 1999.

(d)      The public interest is served by discouraging attempts by suspects to evade  lawful search by physical means  or  by committing  another offence.

(e)      Real evidence was gathered from the search which is crucial to the charges laid.

We have expressed the issue of assault in qualified terms because, as Mr Brosnahan explained to us, the question whether an assault had occurred was not in issue in the District Court.   No evidence on that topic was called from Mr Tweeddale for that reason.  Accordingly, we have dealt with this issue on the best view of the agreed facts available to Mr Tweeddale.

[33]     Strictly speaking, it is unnecessary for us to deal with the abandonment issue. We add, however, that we agree with the District Court Judge that the abandonment analysis was, at best, artificial.

Result

[34]     Leave to appeal is granted.   The appeal is allowed.   The decision of the District Court Judge to rule inadmissible the evidence gathered on search is set aside. We order that the evidence is admissible at trial.

Solicitors:

Crown Law Office, Wellington